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Husband’s delay results in child support obligation for child resulting from wife’s infidelity

by Jason G. Schutte

Petitioner Jerry Ostrander filed a Petition for Dissolution of Marriage from his wife, Starr Ostrander on May 8, 2012.[2]

Starr argued through the proceedings that Jerry was aware for the day of conception that the child was not his.  Jerry admitted that he was aware of Starr’s infidelity when he found out she was pregnant.  Additionally, he admitted that he and Starr had discussed the possibility that the child might not be his, though he thought that it “could have possibly been” his.  A key point was established when evidence was presented that R.O. was born with a genetic disease that indicated the child could not have been Jerry’s.

[4]

Starr appealed, renewing her statute of limitation arguments. The Third District Appellate Court reversed the trial court.[6] It further noted that this presumption could be rebutted by clear and convincing evidence.

[8]

The Appellate Court stressed that Starr had established that Jerry did not bring forth his motion until 8 years after R.O. was born.  This fact placed the burden of proof on Jerry to establish that the facts of this case satisfied the statute of limitations.  The Court found that Jerry had not met this burden because he did not present any evidence to rebut Starr’s contention or establish that he only recently learned that the child was not his.  Additionally, the fact that Jerry had serious doubts that R.O. was his child further established that he had knowledge that R.O. was not his child more than 2 years prior to brining this action.[10]

Jerry’s delay in taking legal action prevented him from establishing that a parent-child relationship did not exist between himself and R.O. The Appellate Court found that Jerry will be obligated to pay child support in spite of the fact that R.O. is clearly not his child.



[2] Id. at ¶5.

[4] Id. ¶¶ 11-14.

[6] Id. at ¶22, citing 750 ILCS 45/5(a)(1)(2014).

[8] Ostrander at ¶23

[10] Id. ¶ 30.

[11] Id. at ¶30 and generally.

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